The MEC for Health: Gauteng Province and Others v Buhle Waste (Pty) Ltd

The MEC for Health: Gauteng Province invited tenders for comprehensive healthcare waste management, with bids closing on 19 August 2022 and valid for 90 days until 17 November 2022. Buhle Waste (Pty) Ltd was one of the bidders and the incumbent service provider. An extension of the bid validity period was requested, but the request email was sent on 18 November 2022, after the original validity period had expired. Buhle Waste consented to the extension and continued providing services while further extensions were requested and granted. In October 2023, Buhle Waste launched an urgent application (Part A) seeking an interdict pending a review (Part B), alleging uncertainty about the lawfulness of the extensions. Before the hearing, the tender was awarded to Tshenolo Waste (Pty) Ltd and another bidder. The High Court, dealing only with Part A, declared that the tender had lapsed on 17 November 2022 due to an invalid extension and set aside the tender award, suspending the order for six months. The MEC and other parties appealed.

The appeal was upheld with costs, including the costs of two counsel. The High Court’s order was set aside and replaced with an order dismissing Buhle Waste’s application with costs.

The case reinforces that challenges to administrative action, particularly in public procurement, must be brought under PAJA and not through declaratory relief to circumvent statutory time limits and procedural safeguards. It affirms the importance of Rule 53 records, procedural fairness to all affected parties, and the principle that courts are confined to the issues pleaded.